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| Speeches
University of NSW, Defamation & Media Law Update Seminar
Uniform National Laws and the Federal Court of Australia
Justice Steven Rares[1]
| 23 March 2006 |
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- Last year marked a watershed in the law of defamation in this country. Each of the States and Territories agreed to introduce substantially
uniform defamation laws with effect from 1 January 2006 [2] . All the States have passed a Defamation Act 2005 in substantially similar form ("the Uniform Acts").
- I will refer to provisions in the New South Wales legislation for the purposes of this paper. Of course, there are some differences,
such as in South Australia where there is no provision equivalent to ss. 21 and 22 of the New South Wales, Victorian and Queensland Uniform Acts for the hearing of the matters by a jury.
- The achievement of this milestone provides a useful opportunity to reflect upon the conventional wisdom that actions in which the
sole claim is in defamation can only be brought in the courts of the States or Territories rather than in the Federal Court of Australia.
- Past practice has seen defamation actions in the Federal Court added to some statutory claim, usually under s. 52 of the Trade Practices Act 1974 (Cth), to attract federal jurisdiction. This may be an unnecessary step and may reflect a misunderstanding of federal jurisdiction.
The aim of this paper is to consider possible ways in which the Federal Courts may have jurisdiction in "pure" defamation actions, to review the procedural aspects to the hearing of defamation actions in the Federal Court and briefly to review
the impact of the Uniform Acts on the law.
Bases of Federal Jurisdiction
- Before commencing proceedings in the Federal Court, it is important to satisfy oneself that the Court will have jurisdiction to hear
the matter. The views which I express in this paper are personal views which have not been tested in litigation but which may afford
some guidance as to matters worthy of consideration.
- The fundamental source of the Federal Court’s original jurisdiction in any matter [3] is statutory [4] . By s. 5(2) of the Federal Court of Australia Act 1976 (Cth), the Court is a superior court of record and a court of law and equity. Since the enactment of s. 39B of the Judiciary Act 1903 (Cth), the court can now be seen as a court of general jurisdiction in civil matters, although it will always be necessary to ensure
that the matter sought to be litigated is within federal jurisdiction. Once the jurisdiction of the Court has been effectively invoked
it has "accrued jurisdiction" to determine the whole "matter" or controversy between the parties: Re Wakim; Ex parte McNally [5] .
- The jurisdiction of the Federal Court to hear defamation actions without the addition of any other cause of action may be available
in the following classes of case:
(a) where the publication involves the implied constitutional freedom of communication on government and political matter;
(b) where there is an interstate or, possibly other intranational, publication. An argument may be available to suggest that where
there are interstate or intranational multiple publications within the meaning given in s. 11(5), the operation of s. 118 of the Constitution is engaged so as to enable each jurisdiction to recognize and apply the provisions of s. 11 of the Uniform Acts as substantive modifications of the laws of each jurisdiction and the common law of Australia.
- This paper will deal with each of these classes in turn, however it is apparent that the basis of the argument raised in class (b)
is substantially more complex than the class (a). Consequently, a significantly greater proportion of the paper is devoted to discussion
of those arguments.
The Implied Constitutional Freedom of Communication on Government and Political Matter
- Section 39B(1A)(b) of the Judiciary Act 1903 may give the Federal Court jurisdiction in matters in which the implied constitutional freedom of communication on government and
political matter is in issue [6] . Thus, most defamation cases involving politicians are likely to be within the original jurisdiction of the Federal Court by virtue
of the fact that some aspect of the implied constitutional freedom of communication on government and political matter will be in
issue in the proceedings.
- The mere fact that the plaintiff or applicant is not relying on the implied constitutional freedom is not necessarily a reason to
deny the Federal Court jurisdiction. This is because the defendant or respondent may well do so. The question for the Court will
be whether the controversy between the parties involves a "matter" with a federal claim. As Gummow and Hayne JJ pointed out in Re Wakim; Ex parte McNally [7] :
"What is a single controversy "depends on what the parties have done, the relationships between or among them and the laws which attach
rights or liabilities to their conduct and relationships" [8] . There is but a single matter if different claims arise out of ‘common transactions and facts’ or ‘a common substratum
of facts’ [9] , notwithstanding that the facts upon which the claims depend "do not wholly coincide" [10] . So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination
of the other [11] , as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination
of one will either render the other otiose or necessitate its determination. Conversely, claims which are "completely disparate"
[12] , "completely separate and distinct" [13] or "distinct and unrelated" [14] are not part of the same matter.
Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more
issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not
have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter."
- It is important to note that the implied constitutional freedom itself is not exhaustively defined by the decision in Lange v Australian Broadcasting Corporation [15] , as Gaudron, McHugh and Gummow JJ pointed out in Roberts v Bass [16] . Issues concerning the law of fair comment on a matter of public interest; truth and other common law defences; or circumstances giving
rise to a cause of action may involve issues concerning the application of the implied constitutional freedom.
- Nor should one think that the implied constitutional freedom is necessarily limited simply to cases in which politicians may be plaintiffs
or applicants. Calls are often made in the media for the Commonwealth Parliament, Ministers or their departments, or authorities
of the Commonwealth to act on particular issues. Examples come to mind such as a company collapse, the conduct of a business, such
as is currently the subject of the Royal Commission into the operations of Australian Wheat Board Limited in Iraq, the conduct of
regulatory authorities and, possibly, even issues in courts. In addition, discussion of areas in which the Commonwealth might legislate
or regulate conduct, also, may well be capable of falling within the implied constitutional freedom.
- Some idea as to the potential scope of the implied constitutional freedom can be seen in the decision in Lange v Australian Broadcasting Corporation [17] , where the Court said:
"Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving
information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to
disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian
society are advanced by discussion - the giving and receiving of information - about government and political matters. ...
Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection
by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion
of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting
to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties
operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments
on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this
conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of
the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend." Interstate or Intranational Publications
- Mass media publications may be actionable in the Federal Court because the Uniform Acts contain a choice of law provision in section 11 which any Australian court exercising jurisdiction under one of those Acts is bound to apply.
- There are a number of steps to this argument. However, for present purposes, it is important to begin by focusing attention on:
(1) s. 39B(1A) of the Judiciary Act 1903 which provides:
"The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
...
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or
any other criminal matter."
(2) Section 118 of the Constitution which provides:
"Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings
of every State."
- As Gleeson CJ, McHugh, Gummow and Hayne JJ noted in Dow Jones & Co Inc v Gutnick [18] , harm to reputation is done when a defamatory publication is comprehended by the reader, listener or observer, making publication
not a unilateral, but a bilateral, act involving the publisher and the publishee. Their Honours then observed that the bilateral
nature of publication underpins the common law rule that every communication of defamatory matter founds a separate cause of action
[19] .
- Where a publication is made beyond the limits of any one State in any other State within Australia, importantly, s. 118 of the Constitution requires that full faith and credit must be given, throughout the Commonwealth, to the laws, the public Acts and records, and the
judicial proceedings of every State. Thus, where interstate publications are sued on in a defamation action, the law of each place
of publication will create a substantive right to sue on that publication in that jurisdiction [20] . So, when the plaintiff sues in one forum on interstate or intranational publications, a matter may arise under s. 118 of the Constitution, Accordingly, if a matter does arise under s. 118 then s. 39B(1A)(b) of the Judiciary Act 1903 would apply to confer jurisdiction on the Federal Court [21] . Of course, s. 118 is silent as to the Territories, but when the court is exercising federal jurisdiction, then s. 79 of the Judiciary Act 1903 operates to make Territory laws binding.
The Effect of Section 11
- The Uniform Acts, by s. 11, seek to solve the choice of law issues in such cases by ceding responsibility to the Australian jurisdictional area with
which the harm occasioned by the publication as a whole has its closest connection [22] . Relevantly, s. 11 of the Uniform Acts provides:
" 11 Choice of law for defamation proceedings
-
...
(2) If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in
the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be
applied in this jurisdiction to determine each cause of action for defamation based on the publication.
(3) In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection,
a court may take into account:
(a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert
a cause of action for defamation, the place where the corporation had its principal place of business at that time, and
(b) the extent of publication in each relevant Australian jurisdictional area, and
(c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area, and
(d) any other matter that the court considers relevant.
(4) For the purposes of this section, the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the
rules prescribed by this section.
(5) In this section:
Australian jurisdictional area means:
(a) the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters),
but not including any territory, place or other area referred to in paragraph (c), or
(b) the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal
waters), but not including any territory, place or other area referred to in paragraph (c), or
(c) any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over
which no State or Territory has legislative competence.
geographical area of Australia includes:
(a) the territorial sea of Australia, and
(b) the external Territories of the Commonwealth.
multiple publication means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more
persons."
- Where publication occurs in more than one State or Territory, so that pursuant to the Uniform Acts a cause of action would arise in each such jurisdiction, the question is how does one take account of the laws of each relevant jurisdiction?
- What is the effect of this provision? In a purposive sense it obviously seeks to find a common sense solution to what was the position
under the ancien régime where the parties and the court had to grapple with the laws in up to 8 substantively different jurisdictions in which causes of
action, defences and replies all had different incidences. Remarkably, section 11 seeks to offer a means of reconciling all such
conflicts and inconsistencies within a framework of substantive uniformity among all jurisdictions in Australia. But, how does it
do this?
- In one sense, but over-simplistically, s. 11 represents a choice of law provision which enables the court seized of a defamation claim
to apply one law to resolve all issues, including damages.
- But let us consider this section in the hypothetical context of a court sitting in New South Wales on a Melbourne resident’s
claim based on the publication of a national television program. Does the New South Wales s. 11 have the effect of extinguishing
the causes of action which existed in each other jurisdiction than that which the Court, under s. 11(2), selects as the substantive
law applicable? Certainly, it appears that s. 11 commands the Court so to act, but how does the legislature of one State have the
power to affect the substantive law of another State or Territory?
- The identity of the plaintiff in such an action may make it hard to choose between the substantive laws of New South Wales and Victoria
where, say, he or she is the Prime Minister or Leader of the Opposition and the audience sizes are similar. The theory behind s.
11 in the Uniform Acts is that each State and Territory has passed a provision in identical form so that the law of each jurisdiction will bring about the
same result, first as to the substantive law to be chosen and secondly as to its application to the facts of each case.
Extra-territorial Effect of Section 11 and its Relationship with Section 118
- The Australia Acts 1986 (Cth and Imp) had the effect of extending the legislative powers of the States so as to enable them to make laws with extraterritorial
effect, subject to the Constitution and the Commonwealth of Australia Constitution Act 1900 (Imp), and also so as not to affect the Statute of Westminster 1931 [23] .
- So, in theory, each State could pass an enactment which provided for consequences under its law in respect of causes of action litigated
within its courts even if one or more of those causes of action owed its existence to the law of another State. But, it must be borne
in mind that in a federal system one does not expect to find one government legislating for another [24] . However, the effect of such a State law may not be able to supervene s. 118 of the Constitution which requires that full faith and credit be given to the law of the other State sought to be rendered irrelevant.
- The choice of law provision in s. 11 purports to operate so as to bind each court exercising jurisdiction in cases of interstate or intranational publication not merely
because each State law says it does, but because "effect must always be given by a State or Territory court to the Constitution" [25] . This will raise a question as to how the Constitution’s requirement in s.118, that full faith and credit be given to such State laws, will operate.
- It can be seen that, while s. 11 of the Acts seeks to provide a single choice of law rule common to each jurisdiction, s. 118 of the Constitution requires that full faith and credit be given by, inter alia, the laws of each State to those of the other States and by courts, including the Federal Court, to the laws of the States. This
relationship between the Acts, the common law and the Constitution may give rise to a "matter" in the constitutional sense, a proposition that is to be explored further in the following section.
A Constitutional "Matter"
- It is likely that considerations arising from the application of the choice of law rule in s. 11 of the Uniform Acts, and, indeed, from cases involving the implied constitutional freedom will create a "matter" in the constitutional sense. In one sense the possibility of conflicting findings as to the defamatory quality of a publication
and the establishment or defeat of defences were separate actions litigated in more than one Australian jurisdiction will often indicate
there is a single matter [26] . Once there is a single "matter" within the meaning of one of the nine classes of matter in ss. 75 and 76 of the Constitution, then the court hearing it is exercising federal, not State or Territorial, jurisdiction [27] . Such a "matter" may arise under the Constitution or involve its interpretation within the meaning of s. 39B(1A)(b) of the Judiciary Act 1903.
- In John Pfeiffer Pty Limited v Rogerson [28] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
"In Lange, the common law rule which was propounded with respect to qualified privilege was developed so as to satisfy what the Court identified
as the constitutional imperative respecting freedom of communication. This imperative "operates as a restriction on legislative power"
so that "[s]tatutory regimes cannot trespass upon the constitutionally required freedom" [29] "
- Their Honours continued [30] :
"And the tort of libel may be committed in many States when a national publication publishes an article that defames a person [31] . These difficulties may lead to litigants seeking to frame claims in contract rather than tort (as the NSW Compensation Act anticipated
(s 151E)) or for breach of s 52 of the Trade Practices Act 1974 (Cth) or some similar provision. Characterising such actions may be difficult and may raise questions whether the private international law rules about tort or some
other rules are to be applied [32] ." (emphasis added)
- The passage which I have emphasized indicates that the questions which interstate or intranational defamation claims raise may, but
need not necessarily, arise in federal jurisdiction. Once engaged, federal jurisdiction is national in nature and as was said by
Gleeson CJ, Gummow, Kirby and Hayne JJ in Sweedman v Transport Accident Commission [33] , where the source of federal jurisdiction was s. 75(iv) of the Constitution: [34]
"In those circumstances, there was presented no direct choice between laws of competing States. Rather, federal law controlled and
required the ascertainment under the Judiciary Act of the applicable law [35] . Section 80 of the Judiciary Act was engaged [36] (4) . Federal jurisdiction was to be exercised by the County Court in respect of a matter, being the controversy as to the enforcement
of an obligation the governing law of which under the common law choice of law rules was that of Victoria. The County Court was exercising
jurisdiction in Victoria. No Victorian statute was identified as modifying that common law choice of law rule [37] . There was no applicable provision in a law of the Commonwealth. The upshot was that s 80 required the County Court to apply that common law choice of law rule in determining the law to govern the action [38] ."
- It has been a frequent feature that where a defamation claim is brought in the Federal Court applicants have chosen to add a claim
under s. 52 of the Trade Practices Act 1974. Take the time when, as an unlikely applicant, FAI General Insurance Co Limited succeeded in demonstrating that a rival insurer’s
broker had contravened s. 52 of the Trade Practices Act 1974 by engaging in conduct which was misleading and deceptive in misdescribing the effect of FAI’s professional indemnity policy’s
wording, causing it harm [39] . Ironically, the generosity of that policy’s wording was a cause of FAI’s later collapse.
- The Uniform Acts seek to address the aspect of the common law rule to which Gleeson CJ, Gummow, Kirby and Hayne JJ were referring by a combination
of what can be seen as practical reasons in ss. 8, 39 and, critically for the purposes of federal jurisdiction, s. 11. In s. 8 there is provided a single cause of action in respect of a publication no matter how many imputations about the plaintiff/applicant
it may convey [40] . And s. 39 enables, but does not require, the court to award a single sum in respect of more than one cause of action [41] . In Dow Jones & Co Inc v Gutnick [42] Gleeson CJ, McHugh, Gummow and Hayne JJ noted that the common law favours the resolution of particular disputes between parties by
the bringing of a single action rather than successive proceedings. And ss. 8, 11 and 39 of the Uniform Acts reflect a similar legislative policy. But their Honours firmly rejected adopting a rule, suggested by the appellant, that Australian
law should provide for a single place of publication the law of which would govern liability for publications anywhere else, whether
within or outside Australia [43] . Their Honours continued [44] :
"Publications within Australia, but in different States or Territories, may require consideration of additional principles. Although
the choice of law to be made in such a case is again the law of the place of the tort [45] , questions of full faith and credit [46] or other constitutional questions [47] may well arise."
- Now s. 11 appears to supplant, to some extent, the common law by providing that for intranational publications in more than one State or Territory
there will be but one substantive law applicable. That substantive law is to be ascertained in accordance with the provisions of
ss. 11(2) and (3). The primary mechanism for such ascertainment is in s. 11(2) which provides that where there has been a "multiple publication" [48] the law to be applied to resolve the whole controversy – or "matter" - is that of the Australian jurisdictional area [49] "... with which the harm occasioned by the publication as a whole has its closest connection".
- That test is reminiscent of one of the limbs of the choice of law rule for contract established in Bonython v The Commonwealth [50] viz: "the system of law ... with which the transaction has its closest and most real connection". However, s. 11(3) provides a non-exhaustive [51] list of factors which the Court may take into account in ascertaining that substantive law including the ordinary place of residence
of the plaintiff [52] the extent of publication in, and the extent of harm suffered by the plaintiff in, each relevant Australian jurisdiction.
- In John Pfeiffer Pty Ltd v Rogerson [53] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ adopted a new choice of law rule for intranational torts, having noted that defamation
actions may require further consideration [54] , saying:
"[66] It was said in Lange v Australian Broadcasting Corporation [55] that:
"With the establishment of the Commonwealth of Australia ... it became necessary to accommodate basic common law concepts and techniques
to a federal system of government embodied in a written and rigid constitution."
And it was also pointed out that, within the "single system of jurisprudence" constituted by the Constitution, federal, State and Territory laws and the common law of Australia, "the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law" [56] .
[67] In Lange, it was held that the common law of qualified privilege should be developed consistently with the existence of the implied constitutional
freedom to discuss government and political matters. So, too, the common law with respect to the choice of law rule for tort should
be developed to take into account various matters arising from the Australian constitutional text and structure. They include:
- the existence and scope of federal jurisdiction, including the investment of State courts with federal jurisdiction pursuant to s 77(iii) of the Constitution;
- the position of this Court as the ultimate court of appeal, not only in respect of decisions made in the exercise of federal jurisdiction;
- the impact of ss 117 and 118 of the Constitution upon any so-called "public policy exception" to a choice of law rule for tort;
- the predominant territorial concern of the statutes of State and Territory legislatures; and
- more generally, the nature of the federal compact.
[68] The matters we have referred to require that a somewhat different approach now be adopted with respect to Australian torts which
involve an interstate element. Moreover, they favour the adoption of a single choice of law rule consistently in both federal and
non-federal jurisdiction in all courts in Australia.
[69] In Lange, the common law rule which was propounded with respect to qualified privilege was developed so as to satisfy what the Court identified
as the constitutional imperative respecting freedom of communication. This imperative "operates as a restriction on legislative power"
so that "[s]tatutory regimes cannot trespass upon the constitutionally required freedom" [57] .
[70] The matters we have mentioned as arising from the constitutional text and structure may amount collectively to a particular constitutional
imperative which dictates the common law choice of law rule which we favour. It may be that those matters operate constitutionally
to entrench that rule, or aspects of it concerning such matters as a "public policy exception". If so, the result would be to restrict
legislative power to abrogate or vary that common law rule. However, we leave these questions open, not the least because there were
no developed submissions upon them.
[71] Finally, we would emphasise that, while the approach to the common law we take in this judgment was at the forefront of the submissions
of the present applicant, it was not discussed in the judgments in McKain or Stevens, being decisions which pre-date Lange."
- Their Honours went on to reject a common law choice of law rule based on the law of the jurisdiction having the most significant connections
with the parties or events [58] .
- The above lengthy passage raises squarely the role of the Constitution, including s. 118, and the existence of a "single system of jurisprudence in Australia" [59] . Likewise, sections 79 and 80 of the Judiciary Act 1903 may be relevant to the exercise of jurisdiction by the Federal Court in a defamation action. Those sections provide:
"79 State or Territory laws to govern where applicable
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except
as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases
to which they are applicable.
80 Common law to govern
So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect,
or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall,
so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil
and criminal matters."
- Gleeson CJ, Gaudron and Gummow JJ noted in ASIC v Edensor Nominees Pty Ltd [60] that s. 79 has been assumed to implement or to be "... consistent with what in any event would flow from the operation of Ch III and covering cl 5 of the Constitution" as well as to be supported by s. 51(xxxix) of the Constitution as a law with respect to matters incidental to the execution of powers vested by Ch III in that Federal jurisdiction. Their Honours
said that Dixon CJ had earlier observed that in a suit between subject and subject ss. 79 and 80 "... direct where this Court shall go for the substantive law" [61] .
- In the context of the Uniform Acts, if there is a matter within federal jurisdiction then s. 79 of the Judiciary Act 1903 "picks up" the provisions of each of Uniform Acts of each jurisdiction in which a publication is made [62] .
- If a publication occurs in more than one State or Territory, the plaintiff could plead specifically a cause of action under s. 8 of
each of the Uniform Acts and allege the substantive law on which the plaintiff sues. The pleading may then rely on s. 118 of the Constitution to ensure that each of the other causes of action in the other jurisdictions became subject to the alleged substantive law.
- It is because each jurisdiction has passed a complimentary provision in s. 11 that it is arguable that that mechanism overcomes the constitutional difficulty that the law of one State or Territory cannot alter
the substantive law of another State or Territory as to a cause of action given by a law of the latter jurisdiction. As Gibbs CJ,
Wilson and Dawson JJ said in Gosper v Sawyer [63] :
"A New South Wales statute could not constitutionally have the effect of altering the law of Victoria as to the administration of
a Victorian trust (see Permanent Trustee Co. (Canberra) Ltd. v Finlayson [64] ) and if s. 88F purported to have that effect it would be a nullity by the law of Victoria."
- Earlier, in Permanent Trustee Co (Canberra) Ltd v Finalyson [65] , Barwick CJ, McTiernan, Kitto, Menzies, Windeyer and Owen JJ said:
"Moreover the law of the Territory contains nothing to give any provision of the New South Wales Act an operation in the Territory,
and it makes no provision of its own as to New South Wales death duty. An endeavour was made in the course of argument to invoke
s. 118 of the Constitution and s. 18 of the State and Territorial Laws and Records Recognition Act 1901-1964 (Cth); but it is one thing to give faith and credit to the New South Wales Stamp Duties Act as achieving all that it purports to achieve as an alteration of the law of New South Wales, and quite another thing to treat it
as producing an extra-territorial result which on its true construction it does not purport to have and could not constitutionally
have, namely to alter the law of the Territory as to Territory administrations."
- The question which then arises is whether effect can be given to the substantive law selected by the several s. 11s and, if so, whether
that can be done regardless of federal law. A choice of law rule, as John Pfeiffer Pty Ltd v Rogerson [66] contemplates, can operate in non-federal jurisdiction in Australia so as to allow the Courts of the forum State or Territory to recognize
and enforce the laws of another State or Territory.
- However, their Honours appear to have concluded that s. 80 of the Judiciary Act 1903 required the application of the common law choice of law rules, so that the matter was in federal jurisdiction. Gleeson CJ, Gaudron,
McHugh, Gummow and Hayne JJ said [67] :
"[102] Development of the common law to reflect the fact of federal jurisdiction and, also, the nature of the Australian federation
requires that the double actionability rule now be discarded. The lex loci delicti should be applied by courts in Australia as the
law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear
upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as
procedural laws.
[103] In the present case, the provisions of the NSW Compensation Act upon which the applicant relied (to deny or diminish the respondent's
claim) should have been classified as provisions about a substantive issue which was governed by the lex loci delicti, New South
Wales. The Supreme Court of the Australian Capital Territory was obliged to reach this result by application, pursuant to s 80 of the Judiciary Act, of the common law rules for choice of law which are part of the common law in Australia referred to in s 80." (emphasis added)
- In the context of an interstate or intranational publication to which the Uniform Acts, and their choice of law provision in s. 11, apply, there is an argument that each lex loci delicti – that is, the law of each place of publication – governs the substantive issues in the litigation concerning such publications,
but, by force of s. 11, each jurisdiction requires the Court to apply only one substantive law which it must ascertain. The reasoning
in the passage just quoted from John Pfeiffer Pty Ltd v Rogerson [68] , suggests that in cases of interstate or intranational publication the first choice of law rule applied by the Court of the forum
may be that selected by the federal common law rule of the place of each publication which s. 80 of the Judiciary Act 1903 mandates. The second choice of law rule which must then be applied may be that required by the law of the place of publication, namely,
that ascertained pursuant to the application of s. 11 of the Uniform Acts of the jurisdiction in which the publication occurred.
- If this analysis were correct, and it has not been tested, then each matter involving interstate or intranational publications is
in federal jurisdiction and, by force of s. 39B(1A)(c) of the Judiciary Act 1903, it could be seen as arising under a law made by the Parliament, namely s. 80 of the same Act.
Complications and Freedom of Intercourse among the States
- One further complication should be mentioned – the truculent menace of much of the twentieth century, s. 92 of the Constitution. It provides, relevantly that "... trade commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely
free". The word "intercourse" includes communication, as Dixon J pointed out in Bank of NSW v The Commonwealth [69] .
- In Nationwide News Pty Ltd v Wills [70] Brennan J said that the expression of ideas whether in literary or other form was capable of attracting the operation of s. 92 [71] . And Deane and Toohey JJ said that the fact that words were used or published in the course of trade or commerce in the production,
distribution and sale of a newspaper "... would not affect the application or operation of s. 92’s guarantee of freedom of interstate intercourse" [72] .
- As the High Court pointed out in Cole v Whitfield [73] , the notions in s. 92 of absolutely free trade and commerce and absolutely free intercourse are quite distinct. The Court said [74] :
"A constitutional guarantee of freedom of interstate intercourse, if it is to have substantial content, extends to a guarantee of
personal freedom 'to pass to and fro among the States without burden, hindrance or restriction': Gratwick v Johnson [75] ...That is not to suggest that every form of intercourse must be left without any restriction or regulation in order to satisfy the
guarantee of freedom. ...It is not necessary now to consider the content of the guarantee of freedom of various forms of interstate
intercourse. Much will depend on the form and circumstance of the intercourse involved. But it is clear that some forms of intercourse
are so immune from legislative or executive interference that, if a like immunity were accorded to trade and commerce, anarchy would
result. However, it has always been accepted that s 92 does not guarantee freedom in this sense, i.e. in the sense of anarchy: see, e.g, Duncan v Queensland [76] ; Freightlines & Construction Holding Ltd v New South Wales [77] . Once this is accepted, as it must be, there is no reason in logic or commonsense for insisting on a strict correspondence between
the freedom guaranteed to interstate trade and commerce and that guaranteed to interstate intercourse."
- So, a question may arise as to whether in some way the Uniform Acts cut across the freedom of intercourse which s. 92 protects. That issue, if it arises, will, no doubt, require a particular examination of the operation of some section in a factual
setting about which I will not begin to think, let alone, speculate.
- As the above discussion illustrates, defamation actions in which interstate or intranational publications are involved raise sui generis issues as to whether they are in federal jurisdiction. The resolution of those issues, at least in the proceedings where they are
first raised, is likely to occur in federal jurisdiction because the Constitutional question as to jurisdiction will be part of the
"matter".
Procedural matters in the Federal Court
- Obviously, the jurisdictional questions referred to above may need to be established in litigation before the Federal Court could
offer a relatively certain path to litigants seeking an alternate venue to the traditional State and Territory Courts.
- Although s. 39 of the Federal Court of Australia Act 1976 provides that unless the Court otherwise orders trials in the Court are to be by a judge without a jury, ss. 40-42 make provision for jury trials. Because s. 79 of the Judiciary Act 1903 would "pick up" [78] ss. 21 and 22 of the New South Wales Uniform Act [79] , the Federal Court would have regard to, inter alia, what s. 40 of its own statute requires – namely where "... the ends of justice appear to render it expedient to do so ..." - in considering whether to order a jury trial. So, in Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) [80] Jenkinson J thought it not unlikely that a trial by jury would be ordered in a defamation action which was combined with a count
under s. 52 of the Trade Practices Act 1974.
- Factors which may be relevant to the exercise of the Federal Court’s discretion under ss. 39 and 40 of its Act and s. 21 of the Uniform Acts as to jury trial are:
(a) the fact that the Court has a national character, which s. 48 of the Federal Court of Australia Act 1976 recognizes, to sit in one or more venues as is appropriate [81] ;
(b) the desirability that the mode of trial favoured by the relevant legislature whose law, by force of s. 11 of the Uniform Acts, is the substantive law to decide all causes of action arising from the multiple publications, should be given effect. Of course, this consideration would be equally relevant
the other way in those jurisdictions like South Australia and the two mainland Territories where there is no provision for jury trial
of defamation actions;
(c) the fact that since at least the time of the passage of Fox’s Libel Act in 1792, it has been recognized that a jury is an appropriate tribunal of fact to decide the question of libel or no libel. As Brennan
J, speaking for the Court, said in Reader’s Digest Services Pty Ltd v Lamb [82] :
"But the moral or social standard by which the defamatory character of an imputation is determined is not amenable to evidentiary
proof; it is pre-eminently a matter for the jury to give effect to a standard which they consider to accord with the attitude of society generally." (emphasis added) Conclusion
- The enactment of the Uniform Acts may cause a reappraisal by the profession and, then, by the Courts, of the question of federal jurisdiction in interstate and intranational
defamation matters. No doubt the new legislation will spawn many intriguing new arguments of which the issues raised above may form
part.
Paper presented at the University of New South Wales law faculty "Defamation & Media Law Update 2006" seminar on 23 March 2006.
[1] A judge of the Federal Court of Australia
[5] (1999) 198 CLR 511 at 584-588 [136]-[147]
[7] (1999) 198 CLR 511 at 585-586 [140]-[141]
[18] (2002) 210 CLR 575 at 600 [26], 606-607 [44]
[20] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
[26] Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 586 [141], 587 [147]
[27] cf: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 586 [54], 598-599 [95], 606-607 [121]
[32] Collins, "Interaction between Contract and Tort in the Conflict of Laws", International and Comparative Law Quarterly, vol 16 (1967) 103; Pryles, "Tort and Related Obligations in Private International Law", Recueil des Cours, vol II (1991) 9, at pp 166-191
[36] The footnote setting out s 80 has been omitted.
[37] Section 80 speaks of "the statute law in force" in that State; the text and structure of s 80 indicate that laws of other States are not "in force" there. Submissions by South Australia and Western Australia to the contrary were correctly controverted by the appellant.
[38] Blunden v The Commonwealth (2003) 218 CLR 330 at 338-339 [16]-[18], 359-361 [91]-[97]
[40] which appears to refer to each bilateral act, rather than providing in globo for one cause of action for, e.g., publishing 100,000 copies of a newspaper; see too ss. 11(2), 41
[41] again, suggesting that multiple publications of the same matter complained of can be the subject of one award, as has occurred for
many years
[42] (2002) 210 CLR 575 at 604 [36]
[43] 210 CLR 575 at 604 [36]
[44] 210 CLR 575 at 605 [37]
[48] i.e. publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more
persons: see s. 11(5)
[52] or for those corporations permitted to sue under s. 9, its principal place of business
[58] 203 CLR at 538 [78]-[80]
[60] (2001) 204 CLR 559 at 587 [57]
[62] see e.g. 204 CLR 559 at 587-588 [58], 611-612 [134]-[137] per McHugh J, cp at 639 [219]-[220] per Hayne and Callinan JJ
[74] 165 CLR at 393.5, 393.8, 393.10-394.2
[76] (1916) 22 CLR 556 at 573
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